PEOPLE v. ROLDAN (2021)

Judgment of conviction (Mary L. Bejarano, J.), rendered October 29, 2018, affirmed.

Since defendant waived his right to prosecution by information, the facial sufficiency of the accusatory instrument must be assessed under the standard required of a misdemeanor complaint (see People v Dumay, 23 NY3d 518, 521 [2014]). So viewed, the accusatory instrument charging defendant with multiple counts of petit larceny (see Penal Law § 155.25) was not jurisdictionally defective. The instrument alleged that on five separate dates, deponent, a “Loss Prevention Agent” inside a specified Target store, observed defendant remove cell phones, place them inside his jacket pockets, and walk past the cash registers “and out of the door, past the point of payment,” without “permission or authority to remove said items.” These allegations were sufficient for pleading purposes since they provided adequate notice to enable defendant to prepare a defense and invoke his protection against double jeopardy (see People v Kasse, 22 NY3d 1142 [2014]).

Contrary to defendant's present contention, deponent's identification of defendant as the perpetrator was based upon his personal observation of him, and was nonconclusory. Any further challenge to the identification of defendant was a matter to be raised at trial (see People v Konieczny, 2 NY3d 569, 577 [2004]; People v Banaszek, ––– Misc 3d ––––, 2021 NY Slip Op 50324[U] [App Term, 2d, 11th & 13th Jud Dists 2021]; People v Bennett, 70 Misc 3d 134[A], 2021 NY Slip Op 50016[U] [App Term, 1st Dept 2021]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur.